s.365 - General protections

Application to deal with contraventions involving dismissal - Jurisdictional objections - Objection that application was made out of time dismissed - Dismissal takes effect at the end of ascertainable notice period - Application was made within time - Objection that applicant was not dismissed upheld - Applicant resigned - Resignation legally effective and never retracted - Resignation not forced - Application dismissed.

• [1] On 15 July 2025, Ms Carmel Riley applied under s 365 of the Fair Work Act 2009 (Cth) for the Fair Work Commission to deal with a general protections dispute involving dismissal.

• [2] The employer/respondent is the Trustee for the Joseph Family Trust. The employer operates a speech pathology and occupational therapy service called Connecting Dots for Kids. The employer employed Ms Riley as a senior speech pathologist on a part-time basis. Her employment started on 8 January 2024 and ended on 4 July 2025.

• [3] This decision relates to 2 jurisdictional objections that the employer made to Ms Riley's application. First, that the application was not made within 21 days of the date that the dismissal took effect. Second, that they did not dismiss Ms Riley, but that she resigned.

• [4] I conducted a determinative conference on 20 October 2025. Ms Riley gave evidence on her own behalf. Ms Lydelle Joseph, speech pathologist and director of the employer, gave evidence on behalf of the employer. The respondent also filed a witness statement from Ms Krystal Chadwick, Practice Manager. However, I have not taken into account Ms Chadwick's statement, as she did not attend the determinative conference. The parties provided me with relevant documents, including communications via Slack messaging platform, calendar entries and medical certificates and reports. Except for meeting minutes (which I deal with below), the accuracy of the contents of the documents is not in dispute.

• [5] There is no significant factual dispute in this matter.

• [6] Ms Riley is a neurodivergent person, with diagnosed autism and attention deficit hyperactivity disorder. Her neurodiversity affects her interoceptive awareness (the ability to perceive her bodily signals), and executive functioning (the ability to plan, organise and manage tasks), which in turns affects communication. She disclosed her neurodiversity and its effects to the employer.

• [7] In April 2025, Ms Riley gave a presentation to her colleagues during a training day. Feedback from the training day included criticisms that Ms Riley considered were undermining, personal, disrespectful and unprofessional. Ms Riley made a complaint to Ms Joseph about the criticisms and sought her assistance. While the feedback was anonymous, it appears that Ms Riley and Ms Joseph knew which team member was responsible for the criticism that caused Ms Riley's concern.

• [8] Ms Riley said that Ms Joseph seemed unable to manage the conflict. Ms Riley suggested that they change the employment arrangement to a sub-contractor arrangement; this appeared to be so that she would not have to participate in team meetings where she would need to interact with the person who made the criticisms. Ms Riley said that Ms Joseph's response was

we can work something out; you deserve to feel safe at work.

• [9] Ms Jospeh said that the key reason why no action had been taken was that the relevant team member was on leave for 4 weeks immediately following the presentation. Ms Joseph was of the view that it was not appropriate or necessary to contact the team member while she was on leave. When the team member returned to work, Ms Joseph says she had a conversation with the team member. The team member's position was made redundant; this was unrelated to Ms Riley's complaint but partially resolved Ms Riley's concern about participating in team meetings with this team member.

• [10] On Wednesday 28 May 2025, Ms Riley was unwell with a fever. She contacted Ms Joseph to inform her, then Ms Chadwick to ask that Ms Chadwick re-arrange her appointments to be telehealth instead of face-to-face. Ms Chadwick replied with

[client] rejected the [telehealth], mum really not happy.

• [11] Ms Riley worked part-time, and Thursday is not a working day for her.

• [12] On Friday 30 May 2025, Ms Riley was still not well enough for face-to-face appointments and contacted Ms Chadwick at 9:32am to ask the employer to cancel one client's appointment and offer telehealth to another client. Ms Chadwick responded at 9:54 am as follows:

Calling in sick two minutes after your shift starts (or even 15 minutes before) really put us in a tricky spot. You're meant to be our senior speechie, and it honestly looks really unprofessional when we're cancelling a session that was meant to start five minutes ago.

With your GP appointment this morning. If you've got something like that booked before work, you need to let us know ahead of time in case you're not going to make it in. We totally get that things happen, but we can't be finding out at the last second. Same thing with the [client] situation on Wednesday her family drives 40 minutes to get here, and we had to cancel with basically no notice. It just makes us look silly and I am the one copping all the slack.

• [13] Ms Riley then found that her calendar was blocked out as sick leave. Ms Riley and Ms Joseph had a supervision meeting later that day. During this meeting, Ms Riley asked Ms Joseph to begin a formal performance management process if Ms Joseph was of the view that she was not meeting the expectations of the practise. Ms Riley says that Ms Joseph was silent in response. Ms Riley then arranged for a 'debrief meeting' between her, Ms Joseph and Ms Chadwick for the following Monday.

• [14] On Monday 2 June 2025, Ms Riley met with Ms Joseph and Ms Chadwick.

• [15] As part of the employer's materials, Ms Joseph supplied minutes of this and the meeting on 3 June 2025. However, the minutes were produced for the purpose of this matter and are not a contemporaneous record. Nevertheless, Ms Riley said that they were broadly accurate and reflective of the meetings, Ms Riley annotated the minutes in the materials she provided. I am satisfied that the minutes with Ms Riley's annotations are an accurate record of what was discussed during the meetings of 2 and 3 June 2025.

• [16] The meeting discussed the prior week's communications. Ms Riley expressed that Ms Chadwick's message felt like a personal attack on her professionalism and integrity. Ms Riley says that she again brought up that she would appreciate a formal performance management process to which Ms Joseph said that she:

• [17] Ms Joseph agrees that she said those words.

• [18] During the meeting on 2 June 2025, Ms Riley said:

If I'm not good enough, then I would really like to put in my resignation. I'm done.

• [19] Ms Riley says that when she said this, she was extremely upset and crying. She says that the words themselves are accurate, but that she said them when she was in a vulnerable state. She says that she was "done" with the inconsistent treatment, and she had requested performance management because she could not understand where she had gone wrong and what she needed to do.

I broke down and said that I had failed Miss Riley by not supporting her and that I didn't want her to leave but if there was nothing I could do, that's how it needed to be.

• [21] Ms Riley recalls that Ms Chadwick said, "There's no need to resign," and suggested a further meeting the following day.

• [22] Following this, there was a brief discussion about Ms Riley's notice period. Ms Riley and Ms Joseph both recall that there was discussion around a notice period and that 4 weeks was agreed upon as that aligned with the end of a term.

• [23] On the following day (Tuesday 3 June 2025), Ms Riley again met with Ms Joseph and Ms Chadwick. Ms Riley invited Ms Chadwick to start the meeting because she says all 3 sat in silence for a period. Ms Riley says that Ms Chadwick then replied that she hoped Ms Riley had changed her mind. Ms Riley then became upset. There then followed a discussion about the prior week's communications, Ms Riley's health, and the employer's calendar system. Both Ms Riley and Ms Joseph recall that there was further discussion about Ms Riley's notice period and that Ms Riley would work to the end of Term 2.

• [24] Ms Riley recalls that Ms Joseph asked whether Ms Riley was going to write her resignation or whether she would like Ms Joseph to do it; to which Ms Riley responded:

• [25] Ms Joseph disagrees and recalls only that she may have said something along the lines of:

• [26] The meeting ended suddenly when Ms Chadwick hurt her thumb.

• [27] On 10 June 2025, Ms Joseph sent an email to Ms Riley. The subject of the email was, "Confirmation of Resignation" and attached a letter dated 8 June 2025 that was headed, "Resignation Acceptance Letter," which said:

This is to acknowledge receipt of your verbal resignation from Connecting Dots for Kids.

To confirm a few details - your last day of employment will be Friday, July 4th. You will be paid up to and including your final working day.

We will organise payment of your entitlements and final pay and have it paid to your account on Wednesday, July 9th.

On your last day with us, we ask that you bring your company-supplied laptop, phone, uniform, and keys with you to your final meeting with me.

I'm genuinely sorry to see you go. I want to acknowledge your effort and contribution to Connecting Dots with Kids over the last 18 months and ask that you stay in touch.

I'm happy to act as referee for any positions for which you are applying and I wish you every success in all the things you are involved with in the future.

• [29] After the above letter, Ms Riley and Ms Joseph communicated via Slack messages about the possibility of Ms Riley continuing to work with her clients as a sole clinician. Ms Riley replied to say that her employment contract is very strict about that. Ms Joseph explained that in the past a client has moved with a clinician, where it has seemed in the best interest of the client and with an acknowledgement between the employer, the clinician leaving the team and the client's family. Ms Riley then proposed a sub-contracting arrangement. The proposal is detailed and commenced with:

I am proposing the transitional arrangement to shift my engagement from permanent part time. (recently resigned) to a temporary subcontractor role with Connecting Dots.

• [30] The screenshots of messages do not clearly show when this conversation occurred. However, a timestamp suggests either 13 or 15 June. Ms Joseph was of the view that it was likely to be Friday 13 June rather than Sunday 15 June.

• [31] There was also a team meeting at which Ms Joseph informed the team of Ms Riley's departure. Ms Riley and Ms Joseph do not agree about the date this meeting occurred. Ms Riley recalled that it occurred on 12 June, after the King's birthday public holiday. I prefer Ms Joseph's evidence that the team meeting occurred on Tuesday 17 June 2025. Ms Joseph acknowledges that both she and Ms Riley have discrepancies about the dates in their materials. Ms Joseph gave evidence that team meetings occur on Tuesdays and that she did not discuss the resignation at the team meeting on 10 June because that was the date she sent Ms Riley the resignation acceptance letter and Ms Joseph was not at work that day nor the following day. I consider Ms Joseph's explanation to be credible and clear, and supported by the calendar entries, and find that the team meeting at which Ms Riley's departure from the employer was announced occurred on 17 June 2025.

• [32] Ms Riley then continued to work until her employment ended on 4 July 2025. She made an application under s 365 of the Act on 15 July 2025.

• [33] Section 366 of the Act requires that applications under s 365 of the Act are made within 21 days after the dismissal took effect or within such further time as the Commission allows if the Commission is satisfied that there are exceptional circumstances.

• [34] For Ms Riley's application to be within time, her dismissal had to take effect no earlier than 24 June 2025.

• [35] The employer argues that the dismissal (if any is found) took effect either when Ms Riley gave her resignation on 2 or 3 June 2025 or at the latest on 10 June 2025 when the employer accepted the resignation.

• [36] The Full Bench in Ayub v NSW Trains [2016] FWCFB 5500 comprehensively set out the relevant principles to apply when considering when a dismissal takes effect. The discussion in Ayub related to s 394(2) of the Act, which deals with unfair dismissal. However, its reasoning can be applied to s 366 of the Act, which deals with general protections because the language of both sections are the same in relation to the time limit, which is the same for both types of applications. The Full Bench said at [49]:

In relation to a dismissal with notice, drawing on the common law principles earlier identified, the dismissal would take effect upon the date of the expiration of the specified period of notice. It is necessary however for that date to be clearly identifiable. This would equally apply to a conditional notice of termination.

• [37] Applying that principle to this matter, Ms Riley's resignation included a discussion about her notice period, which was agreed to be 4 weeks or to the end of the term. Both parties agree that Ms Riley's final day of work was 4 July 2025. If there was a dismissal, it took effect at the end of her notice period and on her last working day, which was 4 July 2025. Ms Riley's application was therefore made within time, and I do not need to consider whether there are exceptional circumstances to allow any further period.

• [38] Section 365 of the Fair Work Act 2009 (Cth) provides that a person who has been dismissed may apply to the Commission to deal with the dispute. When a person (an applicant) applies to the Commission under s 365, the Commission's role is to try to resolve the matter, and it usually does so by holding a conference. However, if an employer denies that they dismissed the applicant, then the Commission must first determine whether the applicant has been dismissed, before we may exercise our jurisdiction to deal with the dispute: see Coles Supply Chain v Milford [2020] FCAFC 152 at [67] to [68].

• [39] Dismissed is defined in s 12 of the Act, which refers to s 386:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

• [40] Section 386(2) deals with fixed term contracts and s 386(3) deals with demotions. Neither subsection is relevant to this matter.

• [41] The Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47] said:

Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.

• [42] Ms Riley's matter falls to be considered under s 386(1)(a) and the first limb as described by the Full Bench in Bupa v Tavassoli. Ms Riley argued that her resignation on 2 and 3 June 2025 were expressed while she was experiencing significant stress from her health and the communication challenges with Ms Joseph and Ms Chadwick.

• [43] I accept that Ms Riley was experiencing stress that was magnified by her neurodiversity and other personal health matters of which the employer was aware. But I am also satisfied that the words she used and the discussion about her resignation in the meetings of 2 and 3 June 2025 were such that the employer could reasonably understand that she had conveyed a real intention to resign. That is, I am not satisfied that the employer dismissed Ms Riley considering the entirety of the circumstances.

• [44] It may have been a situation within the first limb if the employer had acted only on Ms Riley's initial words:

If I'm not good enough, then I would really like to put in my resignation. I'm done.

• [45] But the meeting on 2 June 2025 did not end at that point. There was further discussion after Ms Riley said those words. Ms Chadwick said that there was no need to resign and scheduled a meeting the following day. Ms Riley discussed with Ms Joseph and Ms Chadwick what her notice period was. Ms Riley gave evidence that after this meeting, she checked her contract of employment to confirm that she was required to give 4 weeks' notice because that was what had been discussed.

• [46] Ms Riley met again with Ms Joseph and Ms Chadwick on the following day (Tuesday 3 June 2025). Ms Riley recalls that Ms Chadwick said she hoped Ms Riley had changed her mind. The employer had not yet acted upon Ms Riley's resignation of the prior day; while Ms Chadwick's statement was not clarifying whether Ms Riley had resigned or not, it was an opportunity for Ms Riley to clarify that she did not want to resign, if that had been the case. Instead, Ms Riley returned to the discussion of the prior day about the communications around her ill health the prior week, reiterated her resignation and further discussed her end date.

• [47] There were other opportunities for Ms Riley to withdraw her resignation before her employment ended. She could have replied to the email that enclosed the 'resignation acceptance letter,' to say that she had not resigned. She did not; she simply acknowledged that she received it. When Ms Riley and Ms Joseph communicated about clients and continued client care, Ms Riley's reply acknowledges her resignation with the words, 'recently resigned,' when she proposes transitioning from employment to a sub-contractor arrangement.

• [48] I am of the view that, taking account of her distress during the meeting, the acute ill-health she experienced in the prior week and may have still been experiencing and her neurodiversity, Ms Riley nevertheless clearly resigned, and at no stage attempted to retract that resignation.

• [49] Ms Riley relied on several cases, but they do not assist her.

• [50] In Bupa v Tavassoli, Ms Tavassoli did not speak English well, was left sitting outside her workplace for about 2 hours waiting to find out if she was to be disciplined and asked a colleague to help her write a resignation letter. During the meeting where she handed in her resignation letter, the manager informed Ms Tavassoli that unless the resignation was changed to be effective immediately, she would still be required to participate in a disciplinary investigation. Ms Tavassoli then scribbled out reference to her notice period and handed the resignation letter back. The following day, the employer sent a letter purporting to accept Ms Tavassoli's resignation. A day after that, Ms Tavassoli attended work and attempted to retract her resignation, but the employer refused.

• [51] In this matter, there is no action of the employer that is analogous to Ms Tavassoli's employer's actions of first creating the stressful situation of informing Ms Tavassoli to sit outside the workplace and wait to find out if she was to be disciplined, and second refusing to allow her to retract her resignation. Further, there was no similar language barrier. Ms Riley may point to a communication barrier that arose from her neurodivergence and health issues; I do not consider that they are analogous to Ms Tavassoli's language barriers. Last, the timing of Ms Tavassoli's resignation and retraction occurs over a matter of days; Ms Riley had her notice period of 4 weeks within which to attempt to retract her resignation. During the notice period, she communicated calmly and in a considered manner with the employer.

• [52] Ms Riley also referred to the decision in Mohazab v Dick Smith Electronics Pty Ltd [No 2] [1995] IRCA 625 for the proposition that an ultimatum leaving the employee with no real choice amounts to constructive dismissal. Mohazab is leading authority on the principles about when an employment is terminated at the initiative of the employer, which require that an act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. The relevance to Ms Riley's case is difficult to discern. There was no ultimatum delivered by the employer. In Mohazab, the employer informed the applicant that he could resign or the employer could call the police to deal with an allegation of theft. The employer then handed the applicant a letter of resignation drafted by the employer. The Court in Mohazab found that this was termination at the initiative of the employer. Part of Ms Riley's case is that she invited the employer to commence a performance management process to resolve the communication issues, and the employer did not do so. It is difficult to see how not placing an employee under a performance management process was an action that could directly or consequentially result in termination.

• [53] Ms Riley relied on the decision in Marks v Melbourne Health [2011] FWA 4024 for the proposition that a resignation given while unwell or under significant stress cannot be regarded as voluntary. While that may be accurate given the right circumstances, Deputy President Ives' dispositive reasoning was that 2 emails sent by the applicant could not be considered either separately or together as resignation (at [33]-[34]). One of the emails said:

I just wanted to let you know that I will be resigning in my position of Environmental Services Manager early next year. At this stage I most probably will resign as of 14th Jan 2011. I just wanted to make sure I gave you both enough notice to find a replacement for me.

• [54] The Deputy President said that, at its highest, the applicant's email stated an intention to resign at a later date but were not resignations (at [34]). The applicant was under medical treatment, not at work at the time he sent the emails and relying upon a family friend to communicate with the employer. In contrast, on at least 2 occasions, Ms Riley's used words that were clear communication of resignation, she discussed her notice period and continued to attend work during that notice period.

• [55] Ms Riley relied on the decision of NSW v Paige [2002] NSWCA 235 for the proposition that a genuine resignation does not require the employer's acceptance. I understand Ms Riley's submission to be that because her employer's acceptance of her resignation is what brought the employment to an end, this rendered her resignation ineffective because case law says genuine resignations do not require acceptance.

• [56] NSW v Paige was a matter in tort and contract law. Mr Paige was a principal employed by NSW Department of Education, and the Teaching Services Act 1980 (NSW) applied to his employment. At [378] the NSW Court of Appeal said, "acceptance of a resignation is not necessary to bring the employment to an end_,"_ in the context of a resignation that Mr Paige initially gave and then attempted to withdraw. The Court of Appeal said that Mr Paige was not able to withdraw his resignation on the basis that it had been made in the heat of the moment. But the Court held that he was able to withdraw his resignation because the Department never accepted the resignation, which it was required to do under s 78 of the Teaching Services Act 1980 (NSW). What is relevant to Ms Riley's matter is that if her resignation was a clear communication, then it would take effect according to its terms - that is, she was resigning with 4 weeks' notice and would work until the end of Term 2. There was no need for the employer to accept the resignation to make it effective, but nor did the employer's acceptance of Ms Riley's resignation render it ineffective when it was a clear communication.

• [57] The final case Ms Riley referred me to was an 1862 decision of the English Court of Common Pleas that relates to contractual principles of offer and acceptance, which are not relevant to this matter.

• [58] Although Ms Riley did not make arguments relevant to the second limb of s 386(1), for completeness, I have considered whether there was any conduct or course of conduct by the employer that left Ms Riley with no real or effective choice but to resign. I am satisfied that there was not.

• [59] I accept that Ms Riley made a complaint about feedback she received and that she felt Ms Joseph did not sufficiently act on that complaint. Ms Joseph's reasons for not acting were known to Ms Riley and entirely reasonable, even if Ms Riley did not think so. I accept too that Ms Riley attempted to resolve the issues by proposing a change to her form of engagement, from employment to sub-contracting. Irrespective of the acceptability of that, it would logically follow that her employment would have come to an end if that proposal had been agreed to. Such an ending would not have been a dismissal within the meaning of s 386, because it would have been mutually agreed and not a termination at the initiative of the employer.

• [60] What precipitated Ms Riley's resignation was communications from Ms Chadwick to Ms Riley about how Ms Riley had given short notice of being unwell and unable to continue with face-to-face appointments. Ms Chadwick is clearly unhappy in her message to Ms Riley about the short notice. The language was intemperate and expressed frustration. But there were alternatives available to Ms Riley other than resignation. Ms Riley initiated the discussions; there is no evidence that the employer intended to take any disciplinary action about Ms Riley giving short notice.

• [61] I also do not consider Ms Chadwick changing Ms Riley's diary entries to 'sick leave' to be an act that forced Ms Chadwick to resign. It seems entirely appropriate that a period of time is recorded as sick leave where an employee is unable to come into work. I accept that Ms Riley had a medical certificate that indicated she was well enough to do non-client facing work. However, the work she was to do that day was client facing; she was unable to do it and had a medical certificate saying so. Sick leave may well have been an appropriate form of leave to take. Certainly, Ms Chadwick as practice manager could have communicated more clearly with Ms Riley, but I am not satisfied that it was conduct that left Ms Riley with no real or effective choice but to resign.

• [62] As I have found that the employer did not dismiss Ms Riley, it follows that her application must be dismissed. This means only that Ms Riley cannot make an application to the Court where she argues that she was dismissed because of a workplace right or due to her disability. Nothing prevents Ms Riley from alleging that adverse action that falls short of dismissal was a breach of the general protections under the Act.

• [63] I order that the application for the Commission to deal with a general protections' contravention dispute involving dismissal under matter number C2025/6886 filed by Ms Carmel Riley on 15 July 2025 be dismissed.

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